Big Brushy Coal & Coke Co. v. Williams

• Decision Date: 24 January 1910
• Docket Number: 1,972.
• Citation: 176 F. 529
• Parties: BIG BRUSHY COAL & COKE CO. v. WILLIAMS.
• Court: U.S. Court of Appeals — Sixth Circuit

176 F. 529

BIG BRUSHY COAL & COKE CO. v. WILLIAMS.

No. 1,972.

United States Court of Appeals, Sixth Circuit.

January 24, 1910

This suit was brought in the circuit court of Morgan county Tenn., and subsequently removed to the court below on the ground of diversity of citizenship. Williams commenced the action to recover $10,000, and alleged in the declaration that the coal company owned and was operating a coal mine in Morgan county, with a tram road running into the mine; that the company employed him as a miner; that his duty was to dig and load coal into cars, and for that purpose to occupy and take care of his room; that while working in the mine he was permanently injured by the falling of rock and slate. Various acts of negligence are alleged against the company, which may be summarized thus Failure of the company to give Williams a safe place in which to work, or to furnish him with sufficient timbers to prop or itself duly to prop, or to inspect, or to give instructions, or to warn him of the peculiarly dangerous character of his work, owing to the presence of 'many horse backs, bell splits, and hill seams' in his room including its roof, of all of which Williams was ignorant and the company had knowledge. The company's plea was one of not guilty.

The trial took place before the court and a jury, and resulted in a verdict in favor of Williams for $7,000. Two motions were made by the company to direct a verdict in its favor, one at the close of Williams' evidence, and the other at the close of all the evidence. Both were overruled. Certain testimony was received against exception of the company, which will be noticed in the opinion. Motion for new trial was overruled, and judgment entered. The case is pending here on proceedings in error.

R. B. Cassell, for plaintiff in error.

Forest W. Andrews, for defendant in error.

Before LURTON, SEVERENS, and WARRINGTON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

The errors assigned are for the most part involved in the issues of fact, which were stated and submitted by the court in its charge to the jury, and are answered by the verdict and judgment. No exception was taken to the charge. The chief complaint is that there was no evidence upon which to found the verdict or judgment. It is stated in the charge:

'The controversy seems to be as to whether the rock that fell upon the miner was exposed by the plaintiff digging and removing the coal under it, and which supported the rock, or whether the rock had been exposed by those who had mined in this same room prior to the plaintiff's operations there.'

There is no conflict of evidence concerning the identity of the room of the mine in which Williams was working at the time of his injury, or the fact that the rock fell from the roof of the room. There is conflict touching the exact portion of the roof from which the rock fell; some of the witnesses stating that it broke at the face of the coal, and some that it broke six or eight inches away from the face, and nearly all saying that it extended thence three to four feet. At the time the rock fell, Williams was either stepping into or walking toward the end of the track on which cars for transporting coal in the mine were operated, and must have been struck by the outer portion of the rock. It is reasonably clear that the coal formerly sustaining the rock had been removed, and the rock exposed, before Williams began to work in the room. There is conflict, however, as to whether he caused the rock to fall by certain work he was doing in the face of the coal, partially within lines corresponding to the width of the falling rock and below the roof of the room. The conflict involves both the nature and extent of this work. It was stated that he prepared a place for a shot and that he fired it; but both Williams and his son, who was working with him, denied that any shot was fired. It is sufficient to say, without going into details, that testimony was given on both sides of the question.

Several other issues of fact grew out of the controversy just commented on. One was whether Williams had been given his choice of any one of three rooms in which to mine coal, and had promised to report his selection, and that he had selected room 28 without giving notice.

But the testimony on this point resulted in an assertion of the company's mine foreman and a denial of Williams. Still another issue of fact arose out of a claim of the company that the room was unsafe and that Williams was employed to make it safe. This kind of service was called 'company work,' and was paid for by the day, while mining coal was paid for by the ton mined. The company's assistant foreman testified that, about two days before Williams began work in room 28, he told Williams that the room was in bad shape, and that some slate in it would have to be taken down before the room would be safe to work in. (In the testimony, and in the charge, the material in the roof of the room was sometimes called rock, and at other times slate.) This foreman further testified in substance that he told Williams to remove the slate and fix the place for work, and that Williams said he would. But Williams contradicted this testimony.

Further issues of fact were made concerning alleged failure of the company to cause the room to be inspected and put in a safe condition, and also failure of Williams himself to inspect it and acquaint himself with its condition. It was quite consistent for the company to claim that it had the room inspected, and so learned of its condition; for, as just shown, it claimed to have engaged Williams to make it safe. But it is not easy to reconcile the two positions taken by the company: First, that Williams was given the choice of three rooms, including room 28, in which to mine coal; and, next, that Williams was employed to put that room in safe condition for mining coal. To take the first position was to say that the company did not know that the room was in a dangerous condition; to take the second was to assert that it did.

But apart from this seeming inconsistency, Williams testified that no officer of the...